Citation Nr: 0731551
Decision Date: 10/05/07 Archive Date: 10/16/07
DOCKET NO. 05-31 807 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri
THE ISSUE
Entitlement to an evaluation in excess of 50 percent for
post-traumatic stress disorder (PTSD), from the initial grant
of service connection.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from December 1967 to
September 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2004 decision by the RO which
granted service connection for PTSD and assigned a 30 percent
evaluation, effective from February 24, 2003, the date of
receipt of the veteran's original claim. 38 C.F.R.
§ 3.400(b)(2)(i). By rating action in August 2005, the RO
assigned an increased rating to 50 percent, effective from
the same date.
FINDINGS OF FACT
1. All evidence necessary for adjudication of this claim
have been obtained by VA.
2. Since service connection was established, the veteran's
symptoms for PTSD are not shown to be productive of
occupational and social impairment with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood.
CONCLUSION OF LAW
The criteria for an initial evaluation in excess of 50
percent for PTSD have not been met. 38 U.S.C.A. §§ 1155,
5100, 5102, 5103, 5103A, 5106, 5107 (West 2002 & Supp. 2006);
38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Part 4,
including Diagnostic Codes 9411-9440 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
With respect to the veteran's claim, VA has met all statutory
and regulatory notice and duty to assist provisions. See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126;
38 C.F.R. §§ 3.159, 3.326.
The United States Court of Appeals for Veterans Claims
(hereinafter, "the Court") held that upon receipt of an
application for service connection VA is required by law to
review the information and the evidence presented with the
claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating or is necessary to substantiate
the elements of the claim as reasonably contemplated by the
application. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). The Court held that such notice must include
notice that a disability rating and an effective date for the
award of benefits will be assigned if there is a favorable
disposition of the claim. Id.
In this regard, the veteran's current appeal is for higher
initial evaluation for his PTSD. The RO issued a statement
of the case in August 2005, and provided the veteran with
pertinent criteria for establishing a higher initial
evaluation under the rating criteria for mental disorders.
Thus, the Board finds that VA complied with the procedural
requirements of 38 U.S.C.A. §§ 5104, 7105(d), and 38 C.F.R.
§ 3.103(b). Id.
VA law and regulations also indicate that part of notifying a
claimant of what is needed to substantiate a claim includes
notification as to what information and evidence VA will seek
to provide and what evidence the claimant is expected to
provide. Further, VA must ask the claimant to provide any
evidence in her or his possession that pertains to the claim.
38 U.S.C.A. § 5103 (West 2002 & Supp. 2006); 38 C.F.R.
§ 3.159(a)-(c) (2007); Pelegrini v. Principi, 18 Vet. App.
112, 120-21 (2004) (Pelegrini II).
Prior to initial adjudication of the veteran's claim, a
letter dated in May 2003, fully satisfied the duty to notify
provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R.
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The veteran was notified of the evidence that was
needed to substantiate his claim and that VA would assist him
in obtaining evidence, but that it was ultimately his
responsibility to give VA any evidence pertaining to his
claim, including any evidence in his possession. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II). The veteran's service medical records and
all VA medical records identified by him have been obtained
and associated with the claims file. The veteran was
examined by VA during the pendency of this appeal and was
afforded an opportunity for a personal hearing, but declined.
Based on a review of the claims file, the Board finds that
there is no indication in the record that any additional
evidence relevant to the issue to be decided herein is
available and not part of the claims file.
In short, the veteran has been made aware of the information
and evidence necessary to substantiate his claim and is
familiar with the law and regulations pertaining to the
claim. See Desbrow v. Principi, 17 Vet. App. 207 (2004);
Valiao v. Principi, 17 Vet. App. 229, 232 (2003). As there
is no indication that any failure on the part of VA to
provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed Cir.
2006).
Law and Regulations
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities, which
is based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of
disability evaluations is the ability of the body as a whole,
or of the psyche, or of a system or organ of the body to
function under the ordinary conditions of daily life
including employment. 38 C.F.R. § 4.10. When evaluating the
level of disability from a mental disorder, the rating agency
will consider the extent of social impairment, but shall not
assign an evaluation sole on the basis of social impairment.
38 C.F.R. § 4.126(b).
As noted above, this appeal arises from an original claim for
compensation benefits and a July 2004 rating decision which
granted service connection for PTSD and an August 2005 RO
decision that assigned a 50 percent evaluation, effective
from February 24, 2003, the date of receipt of the veteran's
claim. 38 C.F.R. § 3.400(b)(2)(i) (2007).
As held in AB v. Brown, 6 Vet. App. 35, 38, (1993), where the
claim arises from an original rating, the claimant will
generally be presumed to be seeking the maximum benefit
allowed by law and regulation. See also Fenderson v. West,
12 Vet. App. 119 (1999), which held that at the time of an
initial rating, separate [staged] ratings may be assigned for
separate periods of time based on the facts found.
Where PTSD results in total occupational and social
impairment, due to such symptoms as: gross impairment in
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation, or
own name, a 100 percent rating is assigned.
Where PTSD causes occupational and social impairment, with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships, a 70 percent rating is for
assignment.
Where PTSD results in occupational and social impairment with
reduced reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships, a 50
percent rating is awarded. 38 C.F.R. § 4.130, Diagnostic
Code 9411 (2007).
Factual Background
In reviewing the evidence, the Board notes that the veteran's
psychiatric symptomatology and the findings on the June 2004
VA psychiatric examination, and the several outpatient VA
psychiatric evaluations, particularly in January and April
2003, were not materially different and reflected significant
social and occupational impairment due primarily to PTSD.
A VA psychiatric evaluation in January 2003 was conducted
primarily for the purpose of determining whether the veteran
met the criteria for a diagnosis of PTSD. At that time, the
veteran reported that he was employed full-time for a
Juvenile Corrections facility as a psychologist, but was
having difficulty at work due to a shift in priorities of
care at the facility. He reported that he was eligible for
retirement in March 2003 and would retire in mid-March. The
veteran reported increased depression, markedly diminished
interest and pleasure, feelings of inappropriate guilt, and
diminished concentration most everyday since his father died
in December 2003. He denied recurrent thoughts of death or
suicide, or any symptoms of mania or hypomania. The veteran
reported a history of one panic attack, but denied any
symptoms of obsessive compulsive disorder. He reported
attentional difficulties and had difficulty sustaining
attention to tasks or conversations and was easily distracted
by extraneous stimuli. He had difficulty falling and staying
asleep; feelings of detachment and estrangement, and
restricted range of affect.
On mental status examination, the veteran was disheveled in
appearance and reported suspiciousness associated with his
work in corrections, but was otherwise alert and fully
oriented. He denied any hallucinations, paranoia, thought
insertions, withdrawal, broadcasting, or blocking. His
thought processes were coherent and goal directed, his
similarities were abstract to a high degree, and his proverbs
were abstract. He could recall five out of five items
immediately and two of five at five minutes. His remote
recall was not intact to presidents. His judgment was
intact, and he had partial insight to structured questions.
The diagnoses included PTSD and major depression. The Global
Assessment of Functioning (GAF) score was 55 for the past
year and current.
On a VA mental health primary intake evaluation at Kansas
City VAMC in April 2003, the veteran reported that he was
depressed, bummed out, and agitated because he and his
siblings were closing out their father's estate and packing
everything up for an estate sale. He estimated his mood as a
5 on a scale of 0 to 10. He denied any suicidal or homicidal
ideations, auditory or visual hallucinations, delusions,
feelings of helplessness/hopelessness/worthlessness, or
increased irritability. He denied any history of
aggressive/assaultive behavior, lack of initiative or lack of
interests. He reported crying spells while packing up his
father's belongings and decreased concentration and
ruminating thoughts regarding his family, especially since
his father's death. He said that he was able to handle his
PTSD symptoms fairly well until the war in Iraqi started, and
that he has had to consciously stop himself from watching the
reports on TV. He reported improvement in his sleeping since
retiring in March, and said that he was sleeping eight hours
a night, but felt that he was a light sleeper. His typical
day included, spending time with his girlfriend helping with
yard work or household tasks, or driving to his father's home
and helping his siblings prepare the house for sale. He
enjoyed fishing and going to a lake, and sometimes played
tennis or golf.
On VA psychiatric evaluation on the same day in April 2003,
the veteran reported essentially the same symptoms as
described above. He reported that his mood was "a little
down" and rated it a 5/10. Intercurrent stressors included
the recent death of his father, his retirement and recent
relocation to another city, and financial problems. On
mental status examination, the veteran was disheveled and
appeared a little older than his stated age wearing a
baseball cap and casual clothing. His behavior was calm and
he was cooperative with good eye contact. His speech was
normal in rate, rhythm and volume, and his affect was mood
congruent with restrictive range. There was some decreased
concentration and attention, but there was no evidence of
suicidal or homicidal ideations, delusional thinking, or
obsessional or compulsive behavior. He had a history of one
panic attack and denied any auditory or visual
hallucinations. His thought processes were linear and goal-
directed, and he was alert and well oriented. His judgment
and insight were fair. The diagnoses included depressive
disorder, not otherwise specified, attention deficit
hyperactivity disorder, PTSD, and rule out cognitive
disorder. The GAF score was 53.
When examined by VA in June 2004, the examiner indicated that
the claims file was reviewed and included a detailed
description of the veteran's medical history and life
experiences. The veteran reported that he had a bass boat
and enjoyed fishing, and that he had a girlfriend. He said
that he was resistant to his girlfriend's desire to get
married and felt that it would be a big adjustment for him
being that he lived alone for several years. The veteran
reported that he had been on several antidepressants which he
felt had lessened his depression, but that they produced a
"numbing" effect.
On mental status examination, the veteran appeared
disheveled, but was cooperative and interacted well during
the interview. He had good eye contact, his affect was flat
to blunted, and his mood was congruent. His flow of thought
was goal directed, with no bizarre communications or
ideations. He had no delusions or hallucinations and denied
any suicidal ideations. He was able to maintain minimum
personal hygiene and other basic activities of daily living.
He had no memory loss or impairment, either short or long
term, and no excessive or ritualistic behavior. His rate and
flow of speech was relevant, logical, and non-obscured. The
veteran did not describe any panic attacks, and none was
noted during the interview. His mood was difficult to
determine, but appeared sad and was probably a 3/10. The
veteran reported difficulty falling asleep and multiple
awakenings that leave him tired the next day. He had no
impaired impulse control. The veteran reported recurrent
nightmares, avoidance behavior, affective numbing towards
others, startled response, and had disillusionment and
demoralization about the war in Iraq and America's role in
it. His symptoms occurred once to twice a week and were of
moderate severity. The diagnosis was PTSD, and the GAF score
was 58.
The examiner commented that the GAF score was assigned based
on the veteran's moderately severe symptoms of PTSD with a
flat, blunted affect. The veteran had moderate difficulty in
social functioning and a desire to be alone and withdrawn.
He also had difficulty with concentration, which the veteran
described as an inability to focus. The examiner stated that
he disagreed with the prior diagnosis of Attention Deficit
Hyperactivity Disorder and noted that there was no history of
any symptoms or manifestations to support the diagnosis.
Therefore, he believed that the veteran's treatment with
amphetamines was unnecessary.
Analysis
The material question at issue is whether the veteran has
sufficient occupational and social impairment because of his
service-connected PTSD to disrupt his performance of
occupational tasks to the extent set forth in the rating
criteria described above for a higher evaluation of 70
percent or greater. 38 C.F.R. § 4.130 (2007).
It must be remembered that disability ratings are intended to
compensate reductions in earning capacity as a result of the
specific disorder. The percentage ratings are intended, as
far as practicably can be determined, to compensate the
average impairment of earning capacity resulting from such
disorder in civilian occupations. 38 C.F.R. § 4.1 (2007).
After reviewing all the evidence of record, the Board
concludes that the veteran's psychiatric disability picture
does not more closely approximate the criteria for a 70
percent schedular rating or higher, since service connection
was established.
In this case, the veteran's reported symptomatology includes
primarily nightmares, startled response, social isolation,
and depression. The VA examination and outpatient reports
during the pendency of this appeal showed that he was
cooperative and well oriented, and that his thought processes
were relevant, coherent, goal-directed, and organized. His
speech was clear and there were no signs or symptoms of
psychosis or delusional thinking. The veteran never
displayed any evidence of disorientation or more than mild
impairment of memory. That is not to say that the veteran is
not impaired by his PTSD. Rather, the clinical notes showed
that he has been able to manage his underlying psychiatric
symptoms.
Moreover, there is no evidence of any obsessional rituals or
illogical, obscure or irrelevant speech. The veteran does
not have suicidal ideations; near-continuous panic affecting
the ability to function independently; impaired impulse
control; spatial disorientation, or neglect of personal
appearance and hygiene. While the various examination
reports noted that the veteran was disheveled, there was no
evidence of any impairment in his ability to maintain good
personal hygiene or to take care of his daily needs.
In his substantive appeal, received in September 2005, the
veteran asserted that he believed that his PTSD warranted a
70 percent evaluation, primarily because of near continuous
depression and that he is withdrawn and socially isolated,
living in a small house on a lake in a rural area. He said
that he had not seen his girlfriend in three months and that
his siblings had never visited him. He also reported that he
had difficulty adapting to stressful situations, like work,
and maintaining effective relationships.
In this regard, the Board notes that the veteran worked for
over 26 years as a psychologist for juvenile corrections
facilities and was reported to have had a good work ethic and
completed his responsibilities despite the stresses of his
job. (See supervisor's statement, received in February
2003). As to his relationships, the outpatient notes
indicate that he has a good relationship with his siblings
and has had a girlfriend for several years.
The Board does not dispute the fact that the veteran has
significant symptoms associated with his PTSD. However, the
fact that he lives in a remote, rural area and does not
interact with people on a daily basis does not entitle him to
a higher evaluation simply by reason of social isolation. In
fact, VA regulations provide that a rating will not be
assigned "solely on the basis of social impairment."
38 C.F.R. § 4.126(b). The veteran is apparently an avid
fisherman; reported that he interacts with other fisherman;
drives himself to his VA medical appointments every couple of
months, and has maintained a relationship with his
girlfriend. Furthermore, there is no objective evidence of
significant impairment in his judgment, relationships, or
thinking. As to any impairment with work, the veteran is
retired. However, given the clinical findings from the VA
evaluations, his educational background, and the fact that he
worked full-time until he retired without any reported lost
time at work because of psychiatric problems suggests that
any impairment in his employability is not more severe than
reflected in the 50 percent evaluation currently assigned.
In this case, the psychiatric reports have consistently
assigned GAF scores ranging from 53 to 58 during the pendency
of his appeal. The Board notes that a GAF score of 45
current and 40 for the past year was rendered on a VA
outpatient note in December 2002. However, the clinical note
did not include any mental status findings or analysis of the
facts. The report was an initial assessment and was based
entirely on the veteran's self-described history. The
veteran subsequently underwent a comprehensive VA psychiatric
evaluation in January 2003, at which time the psychiatrist
assigned a GAF score for the current and past year of 55.
Therefore, the Board finds that the GAF score on the December
2002 outpatient note was significantly outside the range of
all the other scores of record and is of limited probative
value.
The GAF score is an indicator of the examiner's assessment of
the individual's overall functioning. A GAF score between 51
to 60 contemplates moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers).
American Psychiatric Association Diagnostic and Statistical
Manual of Mental Disorders (4th. ed., 1994) (DSM-IV).
Taking the GAF scores into consideration with all the
pertinent evidence of record, including the veteran's
relatively moderate symptoms of PTSD, the Board does not find
that the overall disability picture reflected in the evidence
more nearly approximates the requirements for an evaluation
in excess of 50 percent.
The record shows no findings or objective evidence of any of
the criteria required for a 70 percent evaluation. There was
no evidence of any symptoms such as thought disorder,
psychosis, suicidal ideation, obsessional rituals, near-
continuous panic, impaired intellectual functioning, or
impaired judgment. The VA evaluations and outpatient notes
showed the veteran's thought processes were goal directed,
logical, and coherent. Clearly, the evidence shows reduced
reliability and some problems with interpersonal
relationships. However, the evidence does not suggest that
his PTSD symptoms are of such severity to warrant a rating of
70 percent or higher. Accordingly, the Board concludes that
the veteran does not meet or nearly approximate the level of
disability required for a rating in excess of 50 percent from
the initial grant of service connection.
ORDER
An initial evaluation in excess of 50 percent for PTSD is
denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs